Citation Nr: 1605413
Decision Date: 02/11/16 Archive Date: 02/18/16
DOCKET NO. 15-03 477 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Adams, Counsel
INTRODUCTION
The Veteran had active service from January 1962 to December 1963.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
Further review of the claims folder indicates that the Veteran initially requested a personal hearing before a Decision Review Officer (DRO) at the RO. This hearing was scheduled in April 2015, but the Veteran cancelled it. Later, the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). This hearing was scheduled in November 2015 but was postponed. Most recently, in February 2016, the Veteran was scheduled for an upcoming hearing with a VLJ at the RO in April 2016. Significantly, however, in light of the complete grant of the benefits sought by the Veteran in this appeal (as set forth in the following decision), the Board finds no harm to him in proceeding with the adjudication of his appeal at this time.
This appeal has been processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDING OF FACT
The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus had their onset in service or are otherwise etiologically related to his active service.
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).
Here, the Veteran asserts that he has bilateral hearing loss and tinnitus related to exposure to loud noise (acoustic trauma) during service. Specifically, in an August 2014 statement, he contends that for approximately two years in service he was in the artillery manning 155 MM cannons and that, as such, he was exposed to acoustic trauma during every fire mission. The Veteran's service personnel records confirm that his military occupational specialty was that of a field artillery and intel assistant. Indeed, in a March 2014 memorandum addressing the question of whether an examination was needed, the RO acknowledged the Veteran's MOS and noted that his MOS "has [a] high probability to noise probability." Accordingly, the Board concedes the Veteran's in-service exposure to acoustic trauma.
In this regard, the Board acknowledges that the November 1961 enlistment and November 1963 separation examinations are void of any findings, complaints, or diagnoses of bilateral hearing loss or tinnitus. At the November 2014 VA hearing loss and tinnitus examination, the Veteran presented with a history of noise exposure in service, but denied any significant noise exposure post-service. After a review of the claims file and an audiological examination of the Veteran, the examiner diagnosed bilateral sensorineural hearing loss and tinnitus and opined that the disabilities are less likely as not related to noise exposure based, in part, on the rationale that the Veteran had normal hearing at discharge and no significant shift in thresholds during service. The examiner further opined that it is less likely than not that the Veteran's hearing loss is delayed onset hearing loss related to noise exposure during military service based on studies which shows that the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. With regard to the Veteran's tinnitus, the examiner explained that there is a high correlation between hearing loss and tinnitus and that, in the Veteran's case, his hearing at separation from service was normal which strongly suggests that his tinnitus is unrelated to his in-service noise exposure.
The Board has considered the November 2014 VA audiological examination-including the opinions provided therein. Importantly, however, in rendering the negative nexus opinions for the Veteran's bilateral hearing loss and tinnitus, the examiner did not consider the Veteran's assertions that he has experienced hearing loss and tinnitus since service. Accordingly, the Board finds that the November 2014 VA examination is of limited probative value.
Significantly, throughout the appeal, the Veteran has consistently asserted that he has experienced bilateral hearing loss and tinnitus since service. The Board finds that the Veteran's statements are competent, credible, and probative-and importantly consistent with the duties and responsibilities of his service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
Accordingly, the Board gives the Veteran the benefit of the doubt and finds that service connection for bilateral hearing loss and tinnitus is warranted. See 38 C.F.R. § 1507; 38 C.F.R. § 3.102. Any further discussion of the evidence is simply not warranted.
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
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THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs